Contact: Gina Lauterio
Judge Raps Knuckles of University Over Affirmative Consent Rule for Sexual Assault
WASHINGTON / August 12, 2015 – A Tennessee judge has just ruled that the affirmative consent standard used by the University of Tennessee-Chattanooga was unfair because the rule “erroneously shifted the burden of proof” to the defendant, robbing the student of his due process rights. Judge Carol McCoy noted that “requiring the accused to affirmatively provide consent… is flawed and untenable if due process is to be afforded to the accused.”
The decision can be read here: https://kcjohnson.files.wordpress.com/2013/08/memorandum-mock.pdf
The University of Tennessee-Chattanooga (UTC) sexual assault policy stated, “Consent is given by an affirmative verbal response or acts that are unmistakable in their meaning. Consent to one form of sexual activity does not mean consent is given to another type of sexual activity.
The ruling also highlighted undue interference in the adjudication process. The UTC Administrative Law Judge initially found Corey Mock, the defendant, to be innocent. Following a request by the UTC Chancellor, the Administrative Law Judge reversed her decision, but did not alter any of her original 49 specific findings
George Washington Law School professor John Banzhaf notes about the UTC case that “if the Constitution prohibits a ‘yes means yes’ standard of consent…that cannot be changed by legislation, by federal agencies, or even by the colleges themselves.
The UTC ruling follows two other recent judicial decisions which found university sexual assault proceedings violated the due process rights of the accused
In California, Superior Court Judge Joel Pressman ruled in July that the University of California-San Diego unfairly expelled a student for sexual activities that were allegedly non-consensual. And in Virginia, federal judge Norman Moon ruled last week that Washington and Lee University’s truncated adjudication process “plausibly support a Title IX claim” by the plaintiff
“Due process is a right afforded by the Constitution and the Fourteenth Amendment,” explains SAVE spokesperson Sheryle Hutter. “Abridging this fundamental right, as many state universities are trying to do, has no justification in a nation that cherishes civil rights and the rule of law.”
Stop Abusive and Violent Environments is working to promote effective solutions to campus sexual assault: http://www.saveservices.org/